Roland Mobley v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 12, 2015
• Docket: 29A02-1404-CR-282
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 12 2015, 6:53 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Plainfield, Indiana Attorney General of Indiana

Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Roland Mobley, February 12, 2015

Appellant-Defendant, Court of Appeals Cause No. 29A02-1404-CR-282 v. Appeal from the Hamilton Superior Court; The Honorable Gail Z. Bardach, Judge State of Indiana, 29D06-1310-FD-8334 Appellee-Plaintiff.

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 29A02-1404-CR-282 | February 12, 2015 Page 1 of 6 [1] Roland Mobley appeals his conviction of Class D felony intimidation.1 We

affirm.

Facts and Procedural History [2] On October 5, 2013, Mobley texted his ex-wife “I’m bleeding out now. Don’t

sweat. It’s necessary.” (Tr. at 330.) His ex-wife notified the police, who

decided to conduct a welfare check on Mobley. The police arrived at Mobley’s

property, which has two houses on it. They received no response to their knock

and announcement at the first house, so officers knocked at the second house.

A teenage female at the second house offered to lead officers to Mobley in the

first house. The teen and the officers walked into the first house, and the

officers remained at the top of the basement steps while the teen went down to

look for Mobley. The teenager came running back up the steps exclaiming

Mobley “had a gun.” (Id. at 184.) Mobley repeatedly yelled “get out of my

house,” (id. at 319), and threatened to shoot the people upstairs if they did not

leave. Officers repeatedly announced themselves and asked Mobley to come to

where they could see him to know he was safe. Instead Mobley continued to

threaten to kill them.

[3] Officer Tim Wright, who had known Mobley from the community, tried to

initiate a conversation, but Mobley claimed not to recognize his voice.

1 Ind. Code § 35-45-2-1 (2013).

Court of Appeals of Indiana | Memorandum Decision 29A02-1404-CR-282 | February 12, 2015 Page 2 of 6 Nevertheless, Mobley yelled to Officer Wright, “No, I’m not okay.” (Id. at

148.) Mobley then resumed threatening the officers.

[4] Once officers left the house, Mobley called Lieutenant Thomas Logan on

Logan’s cell phone and repeated his threats. Later, Mobley was in a

conversation with his girlfriend who offered to put another officer, Deputy

Kenton Mustain, on the phone. Mobley insisted the officers leave his property

and that “it would not end well” if he had to come up. (Id. at 270.) In the early

morning, officers left the property without having seen Mobley.

[5] The State charged Mobley with Class D felony intimidation. Mobley tendered

jury instructions regarding self-defense, but the trial court refused them, finding

that the statute defined self-defense in a way that applied only to the use of

force, not to the use of a threat of force. Mobley was found guilty by a jury and

sentenced to 730 days, with 90 days executed and 640 days suspended to

probation.

Discussion and Decision [6] Mobley asserts the trial court erred in not giving a jury instruction regarding

self-defense of property.

The purpose of jury instructions is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. In reviewing a trial court’s decision to give a tendered jury instruction, we consider (1) whether the instruction correctly states the law, (2) is supported by the evidence in the record, and (3) is not covered in substance by other instructions. The trial court has discretion in instructing the jury, and we will reverse only when the Court of Appeals of Indiana | Memorandum Decision 29A02-1404-CR-282 | February 12, 2015 Page 3 of 6 instructions amount to an abuse of discretion. To constitute an abuse of discretion, the instructions given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury. We will consider jury instructions as a whole and in reference to each other, not in isolation.

[7] Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010). “A defendant is only

entitled to reversal if he affirmatively demonstrates that the instructional error

prejudiced his substantial rights.” Hero v. State, 765 N.E .2d 599, 602 (Ind. Ct.

App. 2002), trans. denied.

[8] Mobley wanted a jury instruction on self-defense, which our legislature defined

as:

(d) A person:

(1) is justified in using reasonable force, including deadly force, against any other person; and

(2) does not have a duty to retreat;

if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.

[9] Ind. Code § 35-41-3-2. The trial court declined to give such an instruction

because its application would be incorrect as a matter of law in the context of

an intimidation charge. We agree with the trial court.

[10] Mobley was charged with intimidation, which occurs when “[a] person . . .

communicates a threat to another person, with the intent . . . that the other

Court of Appeals of Indiana | Memorandum Decision 29A02-1404-CR-282 | February 12, 2015 Page 4 of 6 person engage in conduct against the other person’s will.” Ind. Code § 35-45-2-

1 (2013). Self-defense is a theory that negates responsibility for what otherwise

would be a criminal act by permitting individuals to use force to protect persons

or property. Henson v. State, 786 N.E.2d 274, 276-77 (Ind. 2003). Mobley’s

criminal act involved threatened force, but the legislature’s definition of self-

defense does not include threat of force. See Ind. Code § 35-45-2-1. The

legislature has, however, included both force and threat of force in other

statutes. See, e.g., Ind. Code § 35-42-4-1 (“[rape] is a Level 1 felony if: (1) it is

committed by using or threatening the use of deadly force.”) (emphasis added); see

also Ind. Code § 35-42-3-3 (“(a) A person who knowingly or intentionally: . . .

(2) removes another person, by fraud, enticement, force, or threat of force, from

one place to another, commits criminal confinement.”) (emphasis added).

[11] This Court is not in the position to re-write the law or to expand its language

beyond what the legislature wrote. “[W]e will not read into the statute that

which is not the expressed intent of the legislature. As such, it is just as

important to recognize what the statute does not say as it is to recognize what it

does say.” N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind. 2002) (internal citation

omitted). If the legislature wishes self-defense to include “threat of force,” then

we leave it to the legislature to modify that statutory definition. Accordingly,

the trial court did not abuse its discretion by declining to give Mobley’s

requested jury instructions, and we affirm.

[12] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 29A02-1404-CR-282 | February 12, 2015 Page 5 of 6 Vaidik, C.J., and Friedlander, J., concur.

Court of Appeals of Indiana | Memorandum Decision 29A02-1404-CR-282 | February 12, 2015 Page 6 of 6